Danial Jarrahi Wrote In a Note To The  International Relations Think Tank: For eight centuries Magna Carta has been venerated. “It was born with a grey Beard,” Samuel Johnson said. The Massachusetts Body of Liberties (1641), the Virginia Bill of Rights (1776), the Fifth and Fourteenth Amendments to the U.S. Constitution quote its language.1 The story of the political and legal rights is known. Indeed it is too well known, inasmuch as it is remembered largely as myth and as icon, as part of the foundation of Western civilization. In 1956 Winston Churchill published the first volume of his History of the English-Speaking Peoples in which he glorified Anglo-American “brotherhood,” “destiny,” and empire by reverent references to childhood memories of Magna Carta.

Written by: Danial Jarrahi  British Studies MA Student, Faculty of World Studies (FWS), University of Tehran

IRTT: For eight centuries Magna Carta has been venerated. “It was born with a grey Beard,” Samuel Johnson said. The Massachusetts Body of Liberties (1641), the Virginia Bill of Rights (1776), the Fifth and Fourteenth Amendments to the U.S. Constitution quote its language.1 The story of the political and legal rights is known. Indeed it is too well known, inasmuch as it is remembered largely as myth and as icon, as part of the foundation of Western civilization. In 1956 Winston Churchill published the first volume of his History of the English-Speaking Peoples in which he glorified Anglo-American “brotherhood,” “destiny,” and empire by reverent references to childhood memories of Magna Carta.

Magna Carta puts an emergency brake on accelerating state despotism. The handle for the brake is chapter 39. The British human rights barrister Geoffrey Robertson writes, “The appearance of ‘rights’ as a set of popular propositions limiting the sovereign is usually traced to Magna Carta in 1215, although that document had nothing to do with the liberty of individual citizens: it was signed by a feudal king who was feuding with thuggish barons, and was forced to accede to their demands.”3 There is no evidence that King John could write. Besides, we must ask who traces rights to Magna Carta? There is a conservative interpretation restricting it to the elite, and there is a popular interpretation that includes free people and commoners. Robertson continues, Magna Carta “contained some felicitous phrases which gradually entered the common law and worked their rhetorical magic down the centuries.” To call “the felicitous (hilarious) phrases” magic is to overlook the struggle in the streets and fields, the struggle in the prisons, the struggle in the slave  ships, the struggle in the press, the struggle in parliament. The historian Simon Schama blithely waves a magic wand, “But for once, England didn’t want an Arthur. It had Magna Carta instead. And that, it was hoped, would be Excalibur enough.” Monty Python explains.

As we assess the experience of the long twelfth century (culminating in 1215), what strikes us is the similarity of global debates with our own in the twenty-first century. In the summer of 2001 it was the call for reparations for the racist exploitation of Africa and the insistence at a mass gathering in Genoa that “another world is possible,” which preceded the “war on terror” so often compared to a modern crusade. Islam replaced Communism as the demonized Other in the ideology of the ruling class. The genesis of capitalist society has been pushed back to the Middle Ages, when communistic heretical movements and Islam were the main threats to church and king.

The Crusades were military diversions from the social and economic conflicts within Europe. Pope Urban II made this clear in his Clermont speech in 1095 when he declared the bellum sacrum, or the First Crusade, saying “let those who have been robbers for a long time now become knights.” In the same speech he demonized the Arab and Turkish Muslims: they worship Satan, they torture, they’re filthy, they’re rapists, and, in one of the first racist and genocidal programs of European history, he called on the Christians “to destroy that vile race.” During the Crusades of the next century recruiters attempted to drum up support with visions of a land of milk and honey, and the realization on earth of a harmonious peaceable kingdom.

Prophets and messiahs preached the doctrine of having all things in common, which made sense to peasants who resolutely defended their customs and communal routine against the encroachments of feudal landlords and grasping clergy. The notion of having all things common was made plausible by the network of customary rights and practice on common lands, which already by the thirteenth century was both old and endangered.

If crusades against Islam were bids to control the commercial economy of the East, then crusades against heretics were means of terrorizing the landless population of the West. In 1208 the pope launched an exterminating crusade upon the heretics of Albi, in the south of France. Believing that the world around them was diabolical, they opposed procreation as an unkindness. The children of the Children’s Crusade of 1212 were sold into slavery. Meanwhile in England, against John’s will, the pope appointed Stephen Langton archbishop of Canterbury. In 1208 the pope placed King John under interdict and in the following year excommunicated him and his kingdom. The church bells were removed from the steeples, statues of the saints were laid on the ground. King John made up by surrendering his kingdom as a feudal fief to the pope.

Magna Carta was a document of Christian Europe—its first chapter concerned the freedom of the Christian Church from the secular authority of king. Events in the church and in England ran parallel. The pope meanwhile in 1215 opened the fourth Lateran Council, which established the church doctrine of transubstantiation, annual confession, and Easter communion, and which defined heresy. Jews were required to wear identifying badges. It is not a coincidence that the Lateran Council and Magna Carta occurred in the same year.

In May 1215 the barons took London and withdrew their homage and fealty. In June King John and the barons faced each other in armed camps at Runnymede. The parchment charter of sixty-three chapters of liberties to the “freemen of England” was sealed, and homage renewed viva voce. The charter protected the interests of the church, the feudal aristocracy, the merchants, the Jews, and it acknowledged commoners. It assumed a commons.

Its provisions revealed the oppression of women, the aspirations of the bourgeoisie, the mixture of greed and power in the tyranny, an independent ecology of the commons, and the famous chapter 39 from which habeas corpus, prohibition of torture, trial by jury, and the rule of law are derived. No freeman shall be arrested or imprisoned or dispossessed or outlawed or exiled or any way victimized, neither will we attack him or send anyone to attack him, except by the lawful judgment of his peers or by the law of the land.

The next chapter simply stated, “To no one will we sell, to no one will we refuse or delay right or justice.” The value of the individual provisions in the eyes of the only contemporary chronicler (a minstrel attached to Robert of Béthune) put first those treating the disparagement of women and the loss of life or member for killing beasts in the forest.9 Chapters 7 and 8 said simply, “A widow shall have her marriage portion and inheritance forthwith and without difficulty after the death of her husband.” No widow shall be forced to marry so long as she wishes to live without a husband. We can truly say that “one of the first great stages in the emancipation of women is to be traced” to Magna Carta.10 These provisions arose from a grassroots women’s movement that contributed to the construction of alternative models of communal life.11 Magna Carta acknowledged the interests of the urban bourgeoisie. The London commune was established in 1191, and its oath was sworn, unlike the oath of homage, among equals. John was the first king to give a charter to the City of London, with annual election for mayor.

Magna Carta acknowledged the interests of the urban bourgeoisie. The London commune was established in 1191, and its oath was sworn, unlike the oath of homage, among equals. John was the first king to give a charter to the City of London, with annual election for mayor. The eighteenth-century Scottish philosopher and historian David Hume says that during John’s reign London Bridge was finished in stone.

Magna Carta established the freedom of travel for merchants. Chapter 41 stated, “All merchants shall be able to go out of and return to England safely and securely and stay and travel throughout England, as well by land as by water.

Magna Carta was a treaty among contending forces in a civil war; as J. C. Holt says, it was a political document. It attempted to put to rest seven conflicts, namely between church and monarchy, between individual and the state, between husband and wife, between Jew and Christian, between king and baron, between merchant and consumer, between commoner and privatizer. It did not settle these conflicts in the sense of declaring victory. Its chapter 39 has grown to embody fundamental principles, habeas corpus, trial by jury, prohibition of torture. But its work is far from done. Other chapters, too, must grow. We shall find five further principles in the Charters of Liberties: the principle of neighborhood; the principle of subsistence; the principle of travel; the principle of anti-enclosure; and the principle of reparations.

John of Salisbury and the Intellectual Foundations of the Magna Carta

Scholars generally agree that the Magna Carta of 1215 was a watershed in Western (and, more specifically, English) legal and political history and thought. Beyond this simple statement, however, there is little consensus concerning the nature and significance of the Magna Carta’s achievement. One central unresolved issue centers on whether the charter represents a principled

defense of human liberty or instead reflects a pragmatic statement of baronial liberties. The dispute over this question is nontrivial and reflects much more than a matter of language. If one subscribes to the former belief, which received its classic articulation in the seventeenth century (Turner 2003, 145-82) and retains powerful resonance today (Linebaugh 2008), then the Magna Carta deserves to be accorded a foundational role in the intellectual and political history of the liberal-democratic constitutional tradition, in which the rule of law is deemed the basis for the protection of individual freedom. If, however, one adopts the viewpoint of “the modern historian” that the charter “is a statement of [specific] liberties rather than an assertion of [general] liberty,” then the document should be read narrowly as an interesting artifact stipulating elite “privileges” that were “devised mainly in the interests of the aristocracy” (Holt 1965,4). In other words, either the Magna Carta reflects deeper philosophical doctrines and commitments that enjoy purchase beyond their specific time and place, or it represents an expression of the immediate demands and grievances of a specific class displeased with the conduct of King John’s government.

Fryde recently attempted to trace how Langton’s knowledge of theoretical precepts, particularly the distinction between law abiding kingship and lawless tyranny, shaped the premises embedded in the Magna Carta (Fryde 2001,100-11). Even Holt, perhaps the most influential advocate of the “modern” historical reading, avers that the “Magna Carta was intimately connected … with developing political theories of the twelfth century”.

The principle of ecclesiastical liberty has a somewhat different connotation than the idea off feudal liberties. In particular, the medieval church claimed to enjoy a corporate form of liberty, based on its unique role as arbiter between things mundane and things heavenly. Such liberty afforded freedom from the control of secular rulers and their ministers to the Church as a whole, as well as to those people who staffed its offices and to its lands and other earthly possessions.

Idea of liberty is that it pertained to the body of the Church as a mystical union, not to individual churches or their leaders. The Church possessed specific liberties because it enjoyed a general form of liberty that did not depend on any grant from a secular dominion.

In short, ecclesiastical liberty forms the foundation of and prerequisite for temporal political harmony, so that a prince who denies the Church its proper freedom undermines his own capacity to govern. This theoretical precept was propounded with special force by John of Salisbury, a Paris-educated churchman who served at the court of the Archbishop of Canterbury beginning in 1148 and later became a key supporter of Thomas Becket’s struggle to defend the Church against King Henry II.

Fryde has speculated that Archbishop Langton was familiar with the Policraticus and adopted its ideas about the difference between the true king and the tyrant in framing the Magna Carta (Fryde 2001,105-10), concluding that “John of Salisbury made the idea that the King is subject to law accessible … John of Salisbury’s ideas also inspired the Magna Carta”.

There is an even more obvious objection to be posed: the Magna Carta simply does not employ the language of “king under law” versus “tyrant above law” that Fryde ascribes to it. Rather, the charter’s main intellectual matrix is constructed upon the language of liberty, as already noted. Thus, it seems somewhat inaccurate to attribute any influence on the Magna Carta to John of Salisbury on the basis of the distinction he articulated between the king and the tyrant. More promising, by contrast, is the view that John’s defense of the freedom of the Church, which is a dominant theme of the Policraticus and his other works, may have played a significant part in the understanding of liberty on display in the Magna Carta.

In other words, the Magna Carta hints that a precondition of resolving temporal difficulties in the kingdom depends upon the restoration of the proper status of the Church’s liberties. Without the prior establishment of good relations between the king and the English Church, we may infer, it would be impossible to achieve any viable resolution to the conflict between King John and his discontented nobles.

This claim only makes sense under the assumption that, for the par ties involved in draftinga nd promulgating the Magna Carta, the priority of ecclesiastical freedom formed the absolute pre supposition of public order within the kingdom, which was that no king can maintain the loyalty and support of his subjects without showing deference to the liberty of the Church. Such a position reflected the profound belief of medieval Christians such as John of Salisbury in the religious foundations of good government. Of course, the reliance upon ecclesiastical liberty in the Magna Carta by no means approaches the universalistic claim of human freedoms that more modern readers have sought to ascribe to it. But neither can the liberty of the Church be reduced to the conception of baronial liberties that historical scholarship attributes to the charter. Rather, the centrality of the doctrine of ecclesiastical liberty to the Magna Carta represents an alternate principle of freedom? Requiring the acceptance of a specifically Latin Christian world view? That is nonetheless historically grounded in the teachings and practices found among the English in the High Middle Ages, as articulated with particular clarity by John of Salisbury.